Catholic Legal Immigration Network, Inc. (CLINIC)

www.cliniclegal.org

EOIR VIRTUAL LAW LIBRARY

http://www.usdoj.gov/eoir/vll/libindex.html

NATIONAL CLINIC WORK

• Providing a full range of legal and non-legal support services to 161 member agencies comprised of Catholic legal immigration programs.  Member agencies serve poor immigrants seeking family reunification, citizenship, and protection from persecution and violence.

LOS ANGELES CLINIC WORKSERVING IMMIGRANTS

• Children, Youth, and Adults

• Adult Detention Centers: • Lancaster and San Pedro

• Children’s Detention Centers:• Los Angeles and Fullerton

• Immigrant women in criminal detention• Chino

• Newly arriving and long-term residents

LOS ANGELES CLINIC CHILDREN’S WORK

• Screen all minors in detention in Los Angeles Metropolitan Area

• Place cases of minors released in LA area with pro bono counsel

• Place cases of minors released nationally with pro bono counsel through USCRI’s National Center for Refugee and Immigrant Children

• Represent all children who remain in immigration custody

ASYLUM, WITHHOLDING OF REMOVAL, AND

CAT

ASYLUM IS THE BEST OF THE THREE

• Well founded fear standard – lowest standard

• Can apply for LPR status 1 year after granted

• Derivatives can get status also

ASYLUM LAW

• INA 101 (A)(42)• 8 CFR 208.13• INS V. CARDOZA FONSECA,

480 U.S. 421 (1987).• MATTER OF MOGHARRABI,

19 I&N 439 (1987).• UNHCR HANDBOOK ON PROCEDURES

AND CRITERIA FOR DETERMINING REFUGEE STATUS

U.S. ASYLUM PROCESS

• IF IN U.S., CAN APPLY AFFIRMATIVELY TO ASYLUM OFFICE, AND MAY BE GRANTED OR REFERRED TO IMMIGRATION COURT

• IF IN PROCEEDINGS, CAN APPLY TO IMMIGRATION JUDGE

ASYLUM ELEMENTS

• WELL FOUNDED FEAR• OF PERSECUTION• BASED ON -

– RACE, RELIGION, NATIONALITY, POLITICAL OPINION, MEMBERSHIP IN A PARTICULAR SOCIAL GROUP (or imputed)

– NEXUS– GOVERNMENT IS PERSECUTOR OR CANNOT

CONTROL PERSECUTOR

WELL-FOUNDED FEAR

• REASONABLE PROBABILITY• LOWER THAN PREPONDERANCE OF THE

EVIDENCE• HAS OBJECTIVE AND SUBJECTIVE PARTS –

APPLICANT HAS REAL FEAR (SUBJ) AND IT IS REASONABLE (OBJ) UNDER THE CIRCUMSTANCES

• ONE IN TEN PROBABILITY – INS V. CARDOZA-FONSECA, 480 US 421

PERSECUTION

• POVERTY, CRIME, BAD LUCK NOT ENOUGH• BEHAVIOR THAT THREATENS DEATH,

IMPRISONMENT, OR SUBSTANTIAL HARM• HALLMARKS ARE DETENTION, ARREST,

INTERROGATION, PROSECUTION, IMPRISOMENT

• ILLEGAL SEARCH, SURVEILLANCE, BEATINGS, TORTURE, CONFISCATION

RACE, RELIGION AND NATIONALITY

• RACE – BROAD MEANING

• RELIGION

• NATIONALITY MAY ALSO BE ETHNIC OR LINGUISTIC GROUP

• EX OF OVERLAP – BOSNIAN-MUSLIM, KACHIN-CHRISTIAN, ETC.

POLITICAL OPINION

• MAY BE ACTUAL (PARTY MEMBER OR LEADER)

• OR MAY BE IMPUTED (FAMILY WERE ACTIVISTS, FOR EXAMPLE, OR TYPICAL OF CERTAIN ETHNIC GROUP TO HAVE PARTICULAR POLITICAL OPINION)

MEMBERSHIP IN PARTICULAR SOCIAL GROUP

• COMMON, IMMUTABLE CHARACTERISTIC– MATTER OF ACOSTA,

19 I. & N. Dec. 211 (BIA 1985). – MEMBERS OF THE GROUP CANNOT CHANGE, OR SHOULD

NOT BE REQUIRED TO B/C IT IS FUNDAMENTAL TO THEIR IDENTITY OR CONSCIENCE

• VOLUNTARY ASSOCIATION– HERNANDEZ MONTIEL V. INS,

225 F.3d 1084 (9th Cir. 2000).

• FAMILY CAN BE SOC. GROUP• INCLUDES SEXUAL ORIENTATION CLAIMS

IMPORTANCE OF PAST PERSECUTION

• PAST PERSECUTION ESTABLISHES LEGAL PRESUMPTION OF FUTURE PERSECUTION 8 CFR 208.13

• DHS CAN REBUT WITH PROOF BY PREPONDERANCE OF EVIDENCE THAT CIRCUMSTANCES HAVE CHANGED

SUMMARY BASICS

• GOAL: MEET WELL FOUNDED FEAR DEFINITION BASED ON FIVE FACTORS

• PAST PERSECUTION IMPORTANT BUT NOT REQUIRED

• MAJOR SOURCES OF EVIDENCE:

APPLICANT’S STATEMENT, WITNESS STATEMENTS, EXPERTS ON PHYSICAL/ TRAUMA INJURY, COUNTRY CONDITIONS

PREPARING AN ASYLUM CLAIM

• BUILDING THE APPLICANT’S AFFIDAVIT UNTIL ALL RELEVANT FACTS ARE ACCURATE AND DETAILED

• WRITE (AND UPDATE AS NEEDED) THE I-589• SUBMIT AT THE MASTER CALENDAR

HEARING, SUPPLEMENT PRIOR TO MERITS HEARING

EXAMPLES OF GENERAL SUPPORTING EVIDENCE

• U.S. Dept of State County Condition Reports- may be very persuasive evidence. But if contradicts client’s claim, be prepared to specifically rebut w/alternate evidence, expert affidavits

• Human Rights Agency Reports – Amnesty Int’l, Human Rts. Watch

EXAMPLES OF SUPPORTING EVIDENCE CONT.

• Newspaper, magazine, internet articles – foreign and domestic

• Laws of client’s home country (can contact Library of Congress for this type research and send it out if given specific area of law to look for)

• Unpublished positive BIA decisions in similar cases (get from other advocates)

• See materials for additional resources• May also seek support, ideas, through listserves

ASYLUM BASICS: REVIEW FOR BARS

• ONE YEAR DEADLINE MET OR EXCEPTION?– 8 CFR 208.4(a)(2)

• FIRM RESETTLEMENT? – 8 CFR 208.15

• ANY AGGRAVATED FELONY CONVICTION? – SEE DEF. AT 101 (a) 43 and CASE LAW– Investigate if any crimes of drugs, theft or violence

• PERSECUTOR OF OTHERS OR TERRORIST?

WITHOLDING/CAT CLAIMS

• IMMIGRATION COURT HAS SOLE JURISDICTION

• IF BARRED FROM ASYLUM, WILL CONSIDER THESE

• DIFFERENT BURDENS OF PROOF, LESSER RELIEF

• CAN BE REMOVED TO THIRD COUNTRY W/H, OR TERMINATED IF DEFERRAL UNDER CAT

WITHHOLDING OF REMOVAL• HIGHER STANDARD OF MORE LIKELY THAN

NOT WOULD BE PERSECUTED = 50% + CHANCE OF PERSECUTION

• NOT DISCRETIONARY

• CAN BE REMOVED TO 3D COUNTRY• ELIGIBLE WITH CRIMINAL CONVICTION EVEN

AGGRAVATED FELONY IF SENTENCED TO LESS THAN 5 YRS IMPRISONMENT

• BUT CONFIRM THAT CLIENT DOES NOT HAVE ‘PARTICULARLY SERIOUS CRIME’

• WORK PERMIT (EAD) ELIGIBLE

CONVENTION AGAINST TORTURE (CAT)

• 2 TYPES: CAT DEFERRAL AND CAT WITHHOLDING

• FOR DEFERRAL, NO BARS FOR CRIMINAL GROUNDS. FOR CAT W/H, SAME BARS AS INA W/H.

• MUST SHOW INTENTIONAL ACT OF SEVERE SUFFERING, PHYS/MENTAL TORTURE

• BY GOVT ACTOR OR WITH ACQUIESCENCE• NO NEXUS REQUIREMENT• MORE LIKELY THAN NOT = 50%+ CHANCE OF

BEING TORTURED UPON RETURN

DEFERRAL OR WITHHOLDING UNDER CAT

• IF ANY BARS TO CAT W/H, IJ MUST CONSIDER DEFERRAL UNDER CAT

• DEFERRAL CAN BE TERMINATED BY ICE UPON MOTION TO COURT

WITHHOLDING AND DEFERRAL UNDER CAT

• BARS TO W/H SAME AS IN INA – PARTICULARLY SERIOUS CRIME,

• PERSECUTOR OF OTHERS, DANGER TO US SECURITY

• IF BARS APPLY, WILL LOOK AT DEFERRAL• (GRANT OF DEFERRAL MAY STILL BE

DETAINED, AND RELIEF MAY BE TERMINATED MORE EASILY THAN WITHHOLDING)

ASYLUM / WH / CAT

DEFENSES UNIQUE TO CHILDREN

ALWAYS CHECK FOR ALL FIVE PROTECTED GROUNDS

1. Race2. Nationality3. Religion4. Political Opinion5. Particular Social Group

Includes:--- Gender--- Sexual Orientation

MOST COMMON CHILDREN’S CLAIMS

1. Domestic Violence Persecution

2. Gang Violence Persecution

3. Street Child Persecution

DOMESTIC VIOLENCE CLAIMS

• Protected ground = particular social group which you need to craft to facts spec to your case

– Example: “victims of domestic abuse in Honduras where social services for abused children are not reliable or effective”

– Example: “young women in rural Guatemala where young women are routinely subjected to familial violence without government protection”

• Usually in combination with application for Special Immigrant Juvenile Status (SIJS)

DOMESTIC VIOLENCE CLAIMS: Legal Authority

• MATTER OF R-A-– In indeterminate appellate position– Certified by AG but never ruled upon

• The court takes the position the “married women in Guatemala who are unable to leave the relationship” are a particular social group under the law. – Gao v. Gonzalez, 440 F.3d 62, 68 n3 (2d. Cir. 2006).

GANG VIOLENCE CLAIMS

• 2 TYPICAL GROUPS

1. Victim of gang

2. Ex-gang member

VICTIM OF GANG CLAIM

• Challenge is to define group so that it fits in protected grounds

• Particular social group hard to prove– Immutable characteristic?– Voluntary association?

• Usually use combination of groups– Particular social group + political opinion– Particular social group + religion

VICTIM OF GANG: Legal Authority

• Almost NO precedent decisions establishing gang victims particular social group

• Some precedent decisions on combinations of particular social group with political opinion / religion

Decisions Which Analyze “Particular Social Group:”

• Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).• Hernandez Montiel v. INS, 225 F.3d 1084

(9th Cir. 2000).• Karouni v. Gonzalez, 399 F.3d 1163 (9th Cir. 2005). • Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992).• Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)• Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988).• Cruz Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000).• Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998).• Castellano Chacon v. INS, 341 F.3d 533 (6th Cir. 2003).• Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir. 1990).• Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. 1988).

“Political Opinion” in Gang-Based Asylum Cases:

• INS v. Elias-Zacarias, 502 U.S. 478 (1992).• Molina v. INS, 170 F.3d 1247 (9th Cir. 1999).• Nnachi-Anydiegwu v. Gonzalez, 134 Fed. Appx 171 (9th Cir. 2005).• Matter of DV, EOIR San Antonio, TX, 9/9/2004• Matter of Orozco Polanco, EOIR El Paso, TX, 12/18/1997• Matter of Calderon Medina, EOIR Los Angeles, CA, 5/1/2002

“Particular Social Group” in Gang-Based Asylum Cases:

• Matter of DV, EOIR San Antonio, TX, 9/9/2004• Matter of Orozco Polanco, EOIR El Paso, TX, 12/18/1997• Matter of Guzman Castellanos, EOIR Hawaii, 2005 (UPHELD BY

BIA)

EX-GANG MEMBER CLAIM

• Particular Social Group easier to define– Immutable characteristic?– Voluntary association?– Can include imputed membership

• PROBLEMS:– As soon as client’s gang is defined as a

particular social group, then opposing gangs are also PSG’s & may have persecutor bar

– Possible that govt may make terrorist claim

EX-GANG MEMBERLEGAL AUTHORITY

• Please see USCRI website for cases

STREET CHILD CLAIM

• Protected ground = particular social group• 3 part claim:

1. Children with no caretakers left in their home country will be forced to live in the streets

2. Street children are violently treated by government agencies (particularly police) and the public

3. There are almost no shelter systems or legal protections for homeless children

PROVING STREET CHILD CLAIM

• There are large quantities of country conditions documents & potential expert witnesses who can prove last 2 points of claim

• Challenge is to establish in the factual record that there is no one in the child’s extended family who has the capacity to care for the child (i.e. that your client will actually be a member of the PSG of homeless children in his / her country of origin)

VOCABULARY

• EOIR Executive Office of Immigration Review (Immigration Court)

• BIA Board of Immigration Appeals (1st Appellate review of Immigration Judge decision)

• NTA Notice to Appear (Imm. Charging Document)• RESPONDENT Immigrant fighting deportation in court• DHS Department of Homeland Security• US ICE Immigration & Customs Enforcement (Branch

of DHS charged w/ removing unlawful immigrants)

• US CIS Citizenship and Immigration Services (Branch of DHS charged w/ providing services to

immigrants, including asylum applications OUTSIDE of court proceedings)

VOCABULARY, cont…

• IJ Immigration Judge• TA Trial Attorney (opposing counsel in

deportation proceedings)• E-28 Notice of Entry of Appearance that must be

filed in Immigration Court• G-28 Notice of Entry of Appearance filed with

an administrative agency or officer• ORR / Office of Refugee Resettlement

DUCS Dept. of Unaccompanied Children Services (responsible for custody and care of children held while in removal hearings)